Union of India v. The Registrar

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 12-11-2008CORAM :THE HONOURABLE MR. JUSTICE P.K. MISRAandTHE HONOURABLE MR. JUSTICE A. KULASEKARANW.P. No. 28859 of 20041. Union of India rep. by the General Manager Southern Railway Park Town, Chennai – 600 0032. The Divisional Personnel Officer Southern Railway Tiruchirapalli Junction3. The Divisional Commercial Manager Southern Railway Tiruchirappli Junction4. The Divisional Accounts Officer Southern Railway Tiruchirapalli Junction.. PetitionersVersus1. The Registrar Central Administrative Tribunal Madras Bench Chennai – 600 1042. A. Dhanapal3. D. Karunakar4. P. Navaneetha Krishnan5. K. Ponmudi6. P. Umapathi.. RespondentsPrayer : Petition filed under Article 226 of The Constitution ofIndia praying for a Writ of Certiorari calling for the entire records ofthe first respondent in O.A. No. 914 of 2003 including the Order dated16.06.2004 and quash the same.For Petitioners :Mr. V.G. Suresh KumarFor Respondents:Mr. S. Ramachandran for RR3 & 5Mr. Ar.L. Sundaresan, Sr. Counselfor Ms. Al. Ganthimathi for RR2 & 4No appearance for R6 https://hcservices.ecourts.gov.in/hcservices/ ORDERA. KULASEKARAN, JThe respondents 1 to 4 in O.A. No. 914 of 2003 on the file ofCentral Administrative Tribunal, Madras Bench, are the Petitionersherein. The said Original Application was filed by the respondents 2 to5 herein seeking the relief of fixing their pay on par with the sixthrespondent herein, who was junior to them, as per the seniority listpublished by the second petitioner in his letter NOT/P.612/ III/TC/Vol.2dated 30.09.2002.2.The respondents 2 to 5 have canvassed before the Tribunal thatthe second respondent was promoted as Chief Traveling Ticket Inspector,hereinafter referred to as CTTI on 15.02.1995; the third respondent waspromoted to the said post on 30.12.1985; the fourth respondent waspromoted on 25.05.1987; the fifth respondent was promoted on 25.05.1987and the sixth respondent was promoted on 17.08.1989, all in the scale ofpay of Rs.6500-10500; that the respondents 2 to 5 were getting lesserpay than the sixth respondent, though he was promoted only on 17.08.1989and pointing out the same, they sent representations dated 18.11.2002and 27.01.2003, which were not considered by the petitioners, hence, thesaid O.A. was filed before the Tribunal.3.The petitioners herein have contested the Original applicationstating that the provisional seniority list dated 30.09.2002 waspublished and representation from the aggrieved employees were calledfor by extending the time limit of one month upto 31.10.2002; that therespondents 2 to 5 have sent their representation on 18.11.2002; thatthe sixth respondent belongs to Schedule Tribe (ST) community and he waspromoted to the post of CTTI in the scale of Rs.700-900(III PC)/2000-3200(IV PC) with effect from 01.01.1984 against the ST shortfall in therestructured post; that the respondents 2 to 5 were promoted to the saidCTTI post in the scale of pay of Rs.700-900 from 30.12.1985 onwardswhich was the reason for their drawing lesser pay; that while fixing payto all the respondents in the V Pay Commission, corresponding increasewas made, based on it, the sixth respondent's pay was fixed atRs.8,900/- with effect from 01.01.1996 and similarly others pay werealso fixed; that the pay fixation made in favour of the sixth respondentis not erroneous since he drawn higher pay than the respondents 2 to 5by virtue of his earned increments only by means of officiating in thescale of pay of Rs.2000- 3200 earlier than the respondents 2 to 5; thatin terms of rule provisions contained in Rule 1316 of The Indian RailwayEstablishment Code, Vol.II (RII in short) this correspond to FR 22 (C),the benefit of stepping up of pay is available to a senior employee andthe said Rule is subject to certain conditions; that one of theconditions is that the anomaly of the seniors drawing less pay should bedirectly as a result of application of this provision; that in thepresent case, the so called anomaly is not due to application of theaforesaid Rules, hence, the respondents 2 to 5 are not entitled tostepping up of pay. https://hcservices.ecourts.gov.in/hcservices/

4.The Tribunal, after considering the case of both sides foundthat the respondents 2 to 5 are seniors than the sixth respondentherein as per the seniority list dated 30.09.2002; that the date ofentry into the grade of CTTI is also much earlier in respect of therespondents 2 to 5 than the sixth respondent; that even assuming therewas a vacancy arose in ST category, the third respondent herein, whobelonged to the said community, ought to have been accommodated in thevacancy, but it was not explained why the sixth respondent wasconsidered for the said vacancy; that in any event, the sixth respondentis junior to the respondents 2 to 5, besides that they were promoted tothe post of CTTI much prior to the promotion of the sixth respondent andallowed the Original Application as prayed for directing the petitionersherein to fix the pay and allowance of the respondents 2 to 5 on parwith the sixth respondent and pay the arrears arising out of suchfixation within a period of eight weeks.5.The learned standing counsel appearing for the petitionerssubmitted that the sixth respondent was initially recruited in Group 'C'in scale of Rs.260-400 on 10.06.1977. Though the respondents 2 to 5were recruited in the Railways prior to 1976, the sixth respondent waspromoted to the scale of pay of Rs.425-640 which is a selection post on05.09.1979 under the panel published on 07.08.1979 whereas, therespondents 2, 4 and 5 were promoted to the said selection grade on24.11.1982 and the third respondent was promoted on 13.03.1980, thus,the respondents 2 to 5 were selected and promoted to the said grade muchlater to the sixth respondent and they consequently become junior to thesixth respondent; that only while entering the pay scale in the grade ofRs.6500-10500, which is a selection grade post consisting of writtenexamination and viva voce, the sixth respondent was placed below therespondents 2 to 5 in the seniority list, since he was selected to thesaid grade at a later point of time, which would not affect theincrements in pay earned by him over a period of time and it resulted inthe sixth respondent drawing more pay, hence, the pay of the respondents2 to 5 not entitled to be stepped up; that stepping up of pay isconcerned, para 1316 of the Indian Railway Establishment Code, Volume IIis applicable and pay can be stepped up only if the conditions, ascontemplated thereunder, are satisfied; that the Rule contemplatesstepping of pay is applicable only if the railway servant promoted orappointed subsequently to another identical post; that in the presentcase, the sixth respondent was senior to the respondents 2 to 5 hereinin the lower post and not junior to them and prayed for setting asidethe order passed by the Tribunal. In support of his contention, thelearned standing counsel for the petitioners relied on the decision ofthe Honourable Supreme Court reported in (E.S.I. Corporation and anothervs. P.K. Srinivasamurthy and another) (1997) II Supreme Court cases 533wherein in Para-8, it was held thus:-"8.In the present case, respondent 2 who isjunior to respondent 1 became entitled to a higherpay fixation on promotion as a Head Clerk thanrespondent 1 because of the higher scale of pay towhich he became entitled in the post of UDC-in-chargeby reason of the memorandum of 22-3-1978 asinterpreted by the High Court in Gopal Sharma case. https://hcservices.ecourts.gov.in/hcservices/ Respondent 1 never held the post of UDC-in-charge.He had held the post of UDC Cashier. He was,therefore, not entitled to the benefit of thememorandum of 22-3-1978. As a result, the lower postheld by respondent 1 carried a different scale of paythan the lower post held by respondent 2. Since thescales of pay in the lower posts held by the two werenot identical, the question of stepping up of pay forthe purpose of removing any anomaly does not arise inthe present case.(ii)In (Union of India and others vs. M. Suryanarayana Rao) JT1998 (5) SC 448 wherein in Para No.8 and 9, it was held thus:-"8.One of the reasons given by the Tribunal insupport of its order is that when adhoc promotionswere made, the respondent was not consideredtherefore or offered the same and it was not as if herefused to take up higher responsibility. Thereasoning is highly fallacious. As pointed out bythe learned counsel for the appellant adhocpromotions are made within the circles wherevacancies arose and the respondent who was working ina different circle could not have been considered forsuch adhoc promotion or offered the same. The factthat adhoc promotions are made within the circles hasbeen noticed by the Bench in R. Swaminathan's case.9.We respectfully agree with the ratio inUnion of India v. R. Swaminathan & Ors JT 1997 (8) SC61 and allow this appeal. The order of the Tribunalin OA 913/96 filed by the respondent is set aside andthe said application is dismissed. No costs." 6.Mr. Ar.L. Sundaresan, learned senior counsel appearing for therespondents 2 and 4 submitted that the second respondent was promoted asChief Traveling Ticket Inspector on 15.02.1995; the third respondent waspromoted to the said post on 30.12.1985; the fourth respondent waspromoted on 25.05.1987; the fifth respondent was promoted on 25.05.1987and the sixth respondent was promoted on 17.08.1989, all in the scale ofpay of Rs.6500-10500; that the respondents 2 to 5 were getting lesserpay than the sixth respondent, though he was promoted only on17.08.1989; the the Tribunal rightly pointed out that the respondents 2to 5 are seniors than the sixth respondent and ordered to step up theirpay on par with the sixth respondent, hence, prayed for dismissal of thewrit petition. 7.This Court carefully considered the argument of the counselfor both sides. It is seen from the records that the sixth respondentwas initially recruited in Group 'C' in the Railways on 10.06.1977 inthe scale of pay of Rs.260-400. It is the case of the petitioners thatthe second respondent was recruited in the Railways in Group 'D' on13.09.1971, third respondent on 04.04.1976, fourth respondent on17.01.1974 and the fifth respondent on 17.01.1974. The sixth respondentwas promoted on 05.09.1979 to the scale of pay of Rs.425-640 which is a https://hcservices.ecourts.gov.in/hcservices/ selection post as per the panel published on 07.08.1979 and earnedincrements over a period of time, but the respondents 2, 4 and 5 werepromoted to the said selection grade on 24.11.1982 and the thirdrespondent was promoted on 13.03.1980. Thus, the respondents 2 to 5were selected and promoted to the said grade much later to the sixthrespondent and they consequently become junior to the sixth respondent,which is not disputed by respondents 2 to 5. 8.The other averment that the third respondent belonged toSchedule Tribe Community and senior than the sixth respondent but he wasignored and the sixth respondent was accommodated in the vacancy ofschedule Tribe category arose is concerned, the same was not at allchallenged by the third respondent till date, hence, the said pleacannot be considered at this stage. 9.While entering into the pay scale in the grade of Rs.6500-10500, which is a selection post consisting of written examination andviva voce, the respondents 2 to 5 were selected under the panelpublished on 11.06.1987, but the sixth respondent was selected under thepanel published on 02.08.1989, on that basis, the respondents 2 to 5claimed stepping up of pay on par with the sixth respondent. Asmentioned earlier, in the lower grade, the sixth respondent was promotedto the scale of pay of Rs.425-640, which is a selection post, on05.09.1979. The respondents 2, 4 and 5 were promoted to the saidselection post only on 24.11.1982 and the third respondent was promotedon 13.03.1980. The said details makes it clear that the sixthrespondent was senior to the respondents 2 to 5 in the lower grade andearned increments over a period of time, which were not taken intoconsideration by the Tribunal. In view of the above said facts, thesixth respondent earned increments over a period of time, drawing morepay than the respondents 2 to 5 at the time of entering into the gradeRs.6500-10500, pay protection was given to him, which resulted in thesixth respondent drawing more pay, hence, there was no anomaly in thepay as alleged by the respondents 2 to 5. The judgment relied on by thelearned counsel for the petitioner reported in (E.S.I. Corporation andanother vs. P.K. Srinivasamurthy and another) (1997) II Supreme Courtcases 533 is squarely applicable to the facts of the case on hand. Theother judgment relied on by the counsel for the petitioner in (Union ofIndia and others vs. M. Suryanarayana Rao) JT 1998 (5) SC 448 isconcerned, in the said judgment, the Honourable Supreme Court followedthe earlier decision reported in (Union of India and another vs. R.Swaminathan) AIR 1997 Supreme Court 3554 wherein in Para Nos. 10, 11 and13, it was held thus:-“10.....We are concerned with the lastcondition. The difference in the pay of a juniorand a senior in the cases before us is not as aresult of the application of Fundamental Rule 22 (I)(a)(1). The higher pay received by a junior is onaccount of his earlier officiation in the higherpost because of local officiating promotions, whichhe got in the past. Because of the proviso to Rule22 he may have earned increments in the higher payscale of https://hcservices.ecourts.gov.in/hcservices/ the post to which he is promoted on account of hispast service and also his previous pay in thepromotional post has been taken into account infixing his pay on promotion. It is these twofactors which have increased the pay of the juniors.This cannot be considered as an anomaly requiringthe stepping of the pay of the seniors. 11.....There are also other instances citedin the Memorandum. The Memorandum makes it clearthat in such instances a junior drawing more paythan his senior will not constitute an anomaly and,therefore, stepping up of pay will not beadmissible. The increased pay drawn by a juniorbecause of adhoc officiating or regular servicerendered by him in the higher post for periodsearlier than the senior is not an anomaly becausepay does not depend on seniority alone nor isseniority alone a criterion for stepping up of pay.13.The employees in question are, therefore,not entitled to have their pay stepped up under thesaid Government Order because the difference in thepay drawn by them and the higher pay drawn by theirjuniors is not as a result of any anomaly; nor is ita result of the application of Fundamental Rule 22(I)(a)(1).”10.In yet another decision of the Honourable Supreme Courtreported in (Union of India and others vs. Sushil Kumar Paul and others)AIR 1998 SC 1925, in Para No. 6, it was held thus:-“6.....On 13.01.1993 the respondents andMishra were promoted to Grade-I on regular basis.On that date also Mishra was getting a higher paybecause of his ad hoc promotion as Welfare InspectorGrade-I. It was for that reason that Mishra, eventhough was a junior, was getting more pay than therespondents. In view of these facts, the Circulargoverning stepping up of pay issued by the RailwayBoard and the law laid down by this Court in Unionof India v. O.P. Saxena, (1997) 6 SCC 360, therespondents were not entitled to the benefit ofstepping up.....”11.It is evident from the above decision of the HonourableSupreme Court that a junior drawing more pay than his senior alone willnot constitute an anomaly. So far this case is concerned because thehigher pay received by the junior is on account of his earlierofficiation in the higher post which he got in the past in lower grade,therefore, stepping up of pay will not be admissible. https://hcservices.ecourts.gov.in/hcservices/

12.The petitioners relied on para 1316 of Indian RailwayEstablishment Code, Volume II, which is applicable and pay can bestepped up only if the conditions contemplated therein are satisfied bythe respondents 2 to 5. The said Rule contemplates that stepping of payis applicable only if the Railway servant is promoted or appointedsubsequently to any other identical post. In the case on hand, thesixth respondent was senior to respondents 2 to 5 in the lower grade andnot junior to them, drawn higher rate of pay from time to time thanthem. The Tribunal overlooked the said facts and passed the impugnedorder, hence, the same is liable to be set aside and accordingly it isset aside. The writ petition is allowed as prayed for. No costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarrshToThe RegistrarCentral Administrative TribunalMadras Bench, Chennai – 600 104.1 cc To Mrs.AL.Gandhimathi, Advocate, SR.63344.1 cc To Mr.V.G.Sureshkumar, Advocate, SR.63228.WP No. 28859 of 2004 GGK(CO)RVL 25.11.2008